Legal ‘chaos’ likely as divided states grapple with abortion access
The Supreme Court’s decision Friday to overturn the constitutional right to abortion has only further fractured an already deep division between the states, where contentious legal battles are almost certain to erupt as legislatures and attorneys general grapple with the new landscape of abortion access.
Even before the opinion, lawmakers, activists and legal scholars were arguing over whether Republican-led states can enforce abortion bans beyond their borders and target providers, people who provide assistance and the women seeking abortions. That speculation could soon become reality as abortion opponents become more emboldened to try novel approaches to prevent women terminating a pregnancy.
In their dissent, the court’s liberal justices referenced the potential for the ruling to set off an era of legal chaos and peril for individuals.
They said the court’s majority was trying to “hide the geographically expansive effects” of a ruling that “invites a host of questions about interstate conflicts.” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said the decision will put the court at the center of what some scholars have called the coming “interjurisdictional abortion wars.”
“Can a State bar women from traveling to another State to obtain an abortion?” they wrote. “Can a State prohibit advertising outof-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions?”
Professor Michael Steenson of the Mitchell Hamline School of Law in St. Paul, Minnesota, predicted the legal landscape after the Supreme Court decision will be in “absolute chaos” and it will take years to sort out. But some Democratic states aren’t waiting to shield women who travel to get an abortion and ensure patients do not face penalties back home.
Washington is barring the state from acting against doctors who perform such abortions, while California and Illinois are considering similar measures. On Friday, the Democratic governors of California, Oregon and Washington announced a joint commitment to defend abortion access.
Half the states are expected to outlaw most abortions with Roe falling, according to the abortion-rights think tank Guttmacher Institute. Twenty-two states, largely in the South and Midwest, already had total or near-total bans on the books. Aside from Texas, all those had been blocked in the courts before Friday’s decision.
Once that was issued, several Republican state attorneys general, including those in Ohio and Tennessee, asked the courts to lift stays that have blocked previously passed abortion restrictions in their states.
Separately, 13 other states had enacted socalled trigger laws that immediately ban abortion with Roe overturned.
Some legal experts — and even some antiabortion lawmakers — argue that states simply can’t control what goes on beyond their borders. Buying and smoking marijuana is one example: Kansas waits until residents return from “pot vacations” in Colorado to pull them over.
Others warn that the Supreme Court’s decision will encourage states to push extreme policies in their attempt to criminalize abortion. Louisiana lawmakers already have floated a proposal calling abortion homicide, which would have opened up women to murder charges if they got an abortion. The proposal was eventually spiked, and in New Hampshire, the Republican-controlled Legislature rejected a bill this year that would have given potential fathers the right to veto a woman’s abortion. Though legislative leaders there say they don’t expect the state to further restrict abortion, lawmakers who have filed bills in the past are expected to try again.
“They push the envelope,” said Jessica Arons, the American Civil Liberties Union’s senior lawyer for reproductive freedom. “They’re always trying to propose things that in the moment seem outrageous or fringe, but the more they push it over time, it becomes normalized.”